see also

There used to be a respected government-ethics watchdog group called the Citizens for Responsibility Ethics in Washington. It published stories about congressmen who hired their girlfriends or were wined and dined by lobbyists, and it went after people in both political parties. But last summer, CREW was taken over by left-wing hit man David Brock, and now it’s simply another partisan Washington group.

That’s how one should understand CREW’s new lawsuit claiming that President Trump is violating the Emoluments Clauses of the US Constitution. The litigation is not going to go anywhere, but it’s going to be employed as grounds for the impeachment proceedings Democrats plan to bring against the president.

That also isn’t going anywhere, but it’s part of a broader agenda to delegitimize the president. As such, the litigation is nothing more than a cynical attempt to advance a partisan, political goal.

What’s the Emoluments Clause? There are actually two of them, and the CREW lawyers argue the president is violating both.

First, the foreign Emoluments Clause, Article I, §9, cl. 8, provides that “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

There’s a question as to whether the president holds an “office of profit or trust,” as opposed to subordinate, appointed government officials holding such positions. In an opinion as assistant attorney general, Antonin Scalia thought the language didn’t cover presidents. That’s a bit legalistic, however, and we’d not be happy with a president who accepts foreign bribes.

The real question is what counts as a bribe or improper gift.

Trump has assigned his businesses to his sons, and no one has accused them of taking a bribe. Instead, the lawsuit argues that, through his sons, Trump indirectly will have received a “present” if, say, the Canadian prime minister spends a night at a Trump hotel.

Think about that for a second. If it’s right, it means you make a present to Macy’s if you buy a pair of gloves at a Macy’s store.

Yet that’s not how ordinary language works. A present is a gift, and there’s no exchange of gifts in a commercial or consumer bargain. French sociologist Marcel Mauss wrote a whole book on the difference between gifts and bargains, and the distinction between the two is basic to the definition of bribes and gifts in the federal criminal code, as understood by the Supreme Court.

Were it otherwise, would President Obama have violated the clause when a foreign-government official bought one of his books at fair market price?

And what about his Nobel Peace Prize? That wasn’t chump change, and Norway’s Parliament picked the committee that chose him. Nonetheless, the Office of Legal Counsel wrote an opinion that Obama could accept it while president.

So that one is going nowhere. That leaves the second Emoluments Clause, which does specifically apply to presidents. Under Article II §2, cl. 7, presidents are forbidden from receiving any emolument from any of the states or from the United States (except his salary, which cannot increase or diminish during his term). But once again, there’s no emolument, no gift and no bribe when a state official stays at a Trump hotel and pays at the going rate.

As if all this weren’t enough, Trump’s divestiture plans include turning over to the US Treasury any profits received at his hotels from foreign-government clients. That’s still a violation, say the CREW lawyers, because the Constitution provides no remedy to this clause. But there’s no need for a remedy if it’s clear to every eye not blinded by unthinking partisanship that there’s no offense.

Finally, the lawsuit isn’t likely to get off the ground because a court would be unlikely to find that the complainants have standing to bring it. That’s probably just as well for CREW, as it would save it the embarrassment of being laughed out of court.

But then this really wasn’t about the law or the Constitution. It was just about noise, produced by the well-funded instruments of the partisan DC outrage machines.

F.H. Buckley teaches at Scalia Law School and is the author of “The Way Back: Restoring the Promise of America.” Ronald D. Rotunda is the co-author of the “Treatise on Constitutional Law” and “Treatise on Legal Ethics.”